Federal Rule of Criminal Procedure 38 is titled “Staying a Sentence or Disability.” 1

Subsection (b) refers to the effect upon a defendant if a stay is denied or granted. Fed. R. Crim.

P. 38(b)(1)-(2).

Federal Rule of Appellate Procedure 22 is titled “Habeas Corpus and Section 2255 2

Proceedings”. Subsection (a) refers to “Application for the Original Writ” while subsection (b)

refers to “Certificate of Appealability.” Fed. R. App. P. 22.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WENDELL HILL : CIVIL ACTION

:

v. :

:

WILLIAM PATRICK, et al. : No. 05-5261

MEMORANDUM AND ORDER

Presently before the Court is Petitioner’s pro se motion for change of venue. For

the reasons set forth herein, the motion will be denied.

This Court has attempted to liberally construe Petitioner’s motion for change of

venue in an effort to ensure that all of his arguments are identified. Although Petitioner

titles his motion a “motion for change of venue” and refers this court to Federal Rule of

Criminal Procedure 38(b), and Federal Rule of Appellate Procedure 22, I do not believe 1 2

that Petitioner has brought his motion under the appropriate vehicle for relief. Motions

for change of venue are governed by Federal Rule of Criminal Procedure 21. To obtain a

change of venue, the court must be satisfied that “so great a prejudice” against Petitioner

exists that Petitioner cannot obtain a fair and impartial trial. See Fed. R. Crim. P. 21(a). 

The Federal Rules of Criminal Procedure are not applicable to habeas petitions. See

Long v. Wislon, 393 F.3d 390, 397 (3d Cir. 2004) (the Federal Rules of Civil Procedure

Case 2:05-cv-05261-EL Document 20 Filed 09/05/07 Page 1 of 5
2

are applicable to federal habeas petitions to the extent that they are not in conflict with the

habeas rules); see also Rules Governing Section 2254 Cases in the United States District

Courts, Rule 11 (the Federal Rules of Civil Procedure may be applied to a habeas

proceeding, to the extent that they are not inconsistent with any statutory provisions or the

habeas corpus rules). Notwithstanding, I conclude that Petitioner has not shown that

prejudice has prevented or will prevent a fair and impartial review of his habeas petition. 

In support of his motion, Petitioner argues that he has been prejudiced because this

Court engaged in a “one sided reading” of his habeas petition. See Petr.’s Motion for

Change of Venue, at Page 3. Petitioner also argues that he has been prejudiced by the

fact that this Court has provided Respondent with a “second bite of the pie” by ordering

an answer addressing all of Petitioner’s claims. See Id., at Page 1. I do not agree. 

Petitioner’s arguments stem from the fact that, in its Answer, Respondents identified and

responded to only the first four (4) of Petitioner’s fifteen (15) claims. Likewise, when

this Court issued its initial Report and Recommendation, only the first four (4) of

Petitioner’s fifteen (15) claims were addressed. Underlying both Respondent’s and this

Court’s failure to properly identify all fifteen (15) of Petitioner’s claims is the fact that

claims five (5) through fifteen (15) were not on the form provided for habeas petitions

under § 2254, but rather were typed on the back of the financial affidavit accompanying

that form. Consequently, when this Court reviewed Petitioner’s habeas petition and

Respondent’s answer thereto, it did so with the mistaken understanding that all of

Case 2:05-cv-05261-EL Document 20 Filed 09/05/07 Page 2 of 5
I note that Petitioner is not specifically requesting that I recuse myself, but that his

3

habeas petition be transferred out of the Eastern District of Pennsylvania. Nonetheless, I address

this aspect of his argument in an attempt to adequately represent all the issues Petitioner raises in

his motion.

3

Petitioner’s claims had been identified. This Court reviewed those claims with fairness

and impartiality. The unfortunate fact that Petitioner’s additional claims were not

addressed was in no way the result of a “one sided reading” of the issues. 

To the extent that Hill’s motion can be construed as a motion for recusal, the 3

disqualification of a justice, judge or magistrate judge is governed by 28 U.S.C. § 455. 

This statute provides that “any justice, judge, or magistrate judge of the United States

shall disqualify himself in any proceeding in which his impartiality might reasonably be

questioned.” 28 U.S.C. § 455(a). In discussing recusal the Supreme Court has stated that

“the judge’s opinions and remarks must reveal a deep seated or high degree of favoritism

that would make a fair judgment impossible.” Likety v. United States, 510 U.S. 540, 555-

556 (1994). The Supreme Court has also stated that the recusal inquiry must be “made

from the perspective of a reasonable observer who is informed of all the surrounding facts

and circumstances.” Microsoft Corp. v. United States, 530 U.S. 1301, 1302 (2000)

(citing Liteky, 510 U.S. at 548). I do not believe that the facts of the instant matter merit 

recusal. As previously stated, Petitioner’s claims were not identified due to the fact that

they were written on the back of the financial affidavit and not a result of prejudice, or a

lack of impartiality. Such a mistake does not indicate “favoritism” on my part.

Alternatively, Petitioner’s motion may be construed as a motion to transfer. I note

Case 2:05-cv-05261-EL Document 20 Filed 09/05/07 Page 3 of 5
4

that a district court may transfer any civil action to any other district or division where it

might have been brought, in the interests of justice. 28 U.S.C.A. § 1404(a). Petitioner is

currently incarcerated at the State Correctional Institution at Houtzdale which is located

in the Eastern District of Pennsylvania. Petitioner is in custody under the judgment and

sentence of the Court of Common Pleas, Delaware County, which is also located in the

Eastern District of Pennsylvania. An application for writ of habeas corpus may be filed in

the district court for the district where Petitioner is in custody, or the district court for the

district within which the state court was held which convicted and sentenced Petitioner. 

See 28 U.S.C. § 2241(d). As Petitioner is currently incarcerated in the Eastern District of

Pennsylvania, and the state court that convicted and sentenced Petitioner is in the Eastern

District of Pennsylvania, this Court properly has jurisdiction over Petitioner’s habeas

petition and transfer to another district would not be proper. 

Finally, I do not find that the fact that the state court judge that presided over

Petitioner’s trial is now a District Court Judge for the Eastern District of Pennsylvania in

any way prevents a fair and impartial reading of Petitioner’s claims. Indeed, I note that

the district court judge at issue has not been assigned to this case and is not, nor will he

be, associated with this case in any way.

For the foregoing reasons, Petitioner’s Motion will be denied. An appropriate

order follows.

Case 2:05-cv-05261-EL Document 20 Filed 09/05/07 Page 4 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WENDELL HILL : CIVIL ACTION

:

v. :

:

SUPT. PATRICK, et al. : No. 05-5261

O R D E R

AND NOW, this 5TH day of SEPTEMBER, 2007, upon consideration of

Petitioner’s pro se “Motion for Change of Venue” (Doc. #19), IT IS HEREBY

ORDERED that the motion is DENIED.

BY THE COURT:

/S/ PETER B. SCUDERI 

PETER B. SCUDERI

UNITED STATES MAGISTRATE JUDGE 

Case 2:05-cv-05261-EL Document 20 Filed 09/05/07 Page 5 of 5